Justice Denied: TUC report

TUC Report finds women and children have been disproportionately affected by the devastating impact of LASPO, by Emma Fitzsimons

Prior its enactment, campaigners warned that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’)1 would decimate legal aid, deny access to justice to thousands of vulnerable litigants and prove to be a false economy, shifting the burden to an already understaffed court system and overburdened legal aid services sector.

It makes for worrying reading: women are disproportionately affected by the cuts; the practical ability to protect children is more limited due to lack of access to representation; minor financial savings in prison law outweigh the human costs to reform and, all the while, the Government appears to lack any coherent data collection strategy to measure the wider impact of regime.

Methodology

The TUC undertook:

A survey of staff working in the justice sector, particularly courts, legal advice and representation, and probation;

Interviews with representatives from organisations with expertise in the justice sector and assisting people accessing justice;

Submitted FOI requests to the Ministry of Justice; and

Conducted an analysis of the January-March 2016 statistics produced by the Legal Aid Agency.

Key Findings

Staff survey

The TUC surveyed 141 staff members working across the legal sector. Those surveyed came from Citizens Advice, law centres, legal aid, National Offender Management Services, Ministry of Justice, Crown Prosecution Service, HMCTS, HM Prison Service, CAFCASS, Office of the Public Guardian, Probation and Youth Justice, as well as various courts ranging from the Immigration and Asylum Chamber to the Crown Court.

Those surveyed indicated that women were more affected, or more likely to be potentially adversing affected by reforms to legal aid. Reasons for this gendered impact included that women tend to make more civil legal aid applications, and are more often in low-paid, part time work with caring responsibilities.

Respondents singled out women who had suffered domestic violence as at particular risk: domestic violence orders were now harder to obtain due to evidence requirements, with some women being put off going to court at all, due to the difficulties obtaining legal aid. Employment tribunal cases taken by women were also noted to have dropped since the reforms.

A minority of respondents felt that men can be more adversely affected by legal aid reforms because they are less likely to qualify for legal aid now; private family law was singled out as an area were men may be marginalised, particularly in disputes over contact with children.

A tiny proportion of those surveyed - only 2% - felt that the reforms had a positive impact.

More than half of those surveyed said their workloads had increased since 2010, attributed to both staffing cuts and increased volume in their work. The burden has been felt not just among legal aid services providers, but also across the justice sector, placing justice at risk. One CPS Prosecutor reported: “There has been a significant increase in my working hours and I am struggling on every case to fulfil both my statutory professional duties and to do justice to each and every case.”

Increasing numbers of litigants-in-person are resulting in court staff filling the vacuum. One of those surveyed reported that: “The cuts in the court service administration means less staff and more work. Staff have to answer litigants in persons’ questions whereas before a solicitor or a barrister would have fielded such questions. Thus cases take longer as there are less staff to list cases.”

Pressures were also felt in the listing and duration of cases, with 67.2% of respondents reporting that post-LASPO, cases were taking longer to conclude. Court closures are having a negative impact on access to justice and the effective delivery of justice for court users and staff, with 71% of respondents citing it as a concern. Fewer court rooms result in decreased capacity, causing more delay and backlogs.

Interviews in Justice Sector

Representatives from the Howard League for Penal Reform, Islington Law Centre, the Justice Alliance, the Law Society, Rights of Women, Simpson Millar LLP Solicitors and Women’s Aid were interviewed as part of the TUC’s research. Three common themes emerged: (i) access to justice; (ii) court closures and reforms; and (iii) litigants in person.

The differential impact on women was again singled out by both Women’s Aid and Rights of Women as a real cause of concern. In particular, the cross-examination of female litigants in person by their alleged abuser in family courts is likely to put women’s safety at risk. Greater safeguards, such as those already in place for criminal courts, must be put in place to protect victims of domestic violence.

Despite success this year in their judicial review2 on the evidence criteria in domestic violence cases, Rights of Women are still concerned by the barriers many women face in evidencing domestic violence. The £70 fee for a GP’s letter, for example, can prove prohibitively expensive for vulnerable women.

Cuts to prison law legal aid were cited as being counter-productive in terms of facilitating rehabilitation and integration. As Dr Laura Janes, Legal Director at the Howard League for Penal Reform (and founder of YLAL) commented: “The financial savings from reforms to prison legal aid are tiny. But the human and social cost is huge and out of kilter with the rest of the government’s policy. If prisoners can’t access prison law legal aid, they are less likely to have respect for prison rules and regulations.”

Changes to the awarding of legal aid contracts has meant that organisations like Islington Law Centre are no longer able to generate sufficient income to cover costs, and therefore have less capacity to taken on new cases. That must be contextualised against an increased need for assistance, as fewer individuals now qualify for legal aid, but still seek out law centres for advice. Ruth Hayes at Islington Law Centre was quoted as describing the effects as “heartbreaking,” as demand for assistance outstrips supply, with the human cost being all but forgotten in favour of budget cuts.

Simpson Millar Solicitors reported that they have implemented an access to justice scheme, providing legal advice at reduced rates. Yet, demand is such that they are forced to turn down on average 600 vulnerable people a year. Those who do not qualify but equally cannot fund advice or litigation are slipping through the net.

FOI Requests

The TUC submitted two FOI requests on behalf of the Speak Up for Justice campaign. Unsurprisingly, the report notes that the response from the Ministry of Justice was far from satisfactory.

The first request sought information relating to any additional costs to the MOJ and wider public sector that may have been created as a result of the reduction in government spending on civil and criminal legal aid.

The MOJ directed the TUC to existing Treasury Minutes dated March 2015, produced in response to the Public Accounts Committee’s recommendations on implementing legal aid. Nothing more up to date was provided in response.

Those Treasury Minutes provide: “The government does not believe that any wider costs could be meaningfully estimated, and would not plan to do so as part of an impact evaluation. The breadth and reach of the LASPO reforms mean that a meaningful estimate would require isolating the impact of the legal aid reforms from a number of other departmental policies, such as reforms to family justice and tribunal fees, policies from other government departments, such as changes to the benefits system, and wider societal trends, such as divorce rates or possession claims. It is difficult to conceive of how a meaningful estimate could be accurately produced…”

This, the report argues, demonstrates a fundamental flaw with the LASPO reforms: Government has not conceived public services reform in a holistic, cross-departmental way. Instead, the reforms have been rolled out in an incoherent, fragmented way with no baseline measures or plans to monitor the impact across public services.

Indeed, this cavalier attitude towards analytics, data collection and impact assessment is indicative of the entire approach to justice reform: how can Government even determine if LASPO delivers better overall value for the taxpayer when no data has been collected on the wider impact of the reforms?

Interestingly, Legal Action Group commissioned a poll of 1001 GPs, to help quantify the impact of LAPSO and cuts in social welfare. A total of 88 per cent of the GPs polled believed that patients not being able to access legal or specialist advice about their problems would have a negative impact on their health either to a great extent (48 per cent) or to some extent (40 per cent). Worryingly, it has fallen on civil society to monitor the impact of the reforms on indicators like health, because Government has taken the view that it is not possible (or more likely, not palatable) to assess how LASPO has affected justice system users beyond the MOJ’s bottom line.

In another FOI request, the TUC asked for information about the number of domestic violence cases that involved litigants in person during the periods 1 January to 31 December 2011, and 1 January to December 2015.

Again, the MOJ’s response was not illuminating: while the department does hold the data requested, it is not currently in a format that enables it to be shared without exceeding the financial limit imposed by the FOI regime. The MOJ was also not able answer a specific request for the number of applications made by domestic abuse victims, and the number of refusals for the same periods.

Statistical analysis of LAA figures

Worryingly, there has been a consistent decreased in number of applications received and granted for domestic violence when comparing LAA statistics before and after the advent of LASPO. Between 2011-2012 and 2015-16, applications for legal aid relating to domestic violence decreased by 16%, and applications granted fell by 17%.

Recommendations

At the heart of the TUC’s report is its call on the Government to ensure that access to legal aid is based on need and enables people to enforce their right to justice.

The TUC recommends that the MOJ should carry out immediate and in-depth assessments of the impacts on access to justice of budget cuts, LASPO and reforms to court services. These should be done in collaboration with trade unions, other organisations with expertise in this field, those who use the justice system, and other government departments.

The assessments should include:

the impacts on equalities, and whether LASPO enables the UK to meet its obligations under ratified international conventions;

the wider impacts on access to justice the wider costs to the public sector and knock-on costs of the reforms;

the impacts on court services and on the ability of the justice system to deliver justice fairly, effectively and efficiently.

The report also calls for a moratorium on further budget and staffing cuts in the justice sector, until those assessments are carried out. Finally, the TUC powerfully restates the case for an evidence-based approach to legal aid policy, which must be understood within the context of wider public services.

Emma Fitzsimons is a barrister at Garden Court Chambers, and a member of Young Legal Aid Lawyers.

1The Justice Denied Report provides a helpful summary of the changes ushered in under LASPO in the Appendix at page 34 .